Page:Harvard Law Review Volume 8.djvu/195

RECENT CASES. 179 wife's seisin. Held, that the husband was liable to a subsequent grantee of the wife's on their covenant of warranty. Mygatt et al. v, Coe, 36 N. E. Kep. 870 (N. Y.). In nearly all jurisdictions not already bound by authority, the law is in line with the principal case. In this country, at least, common sense required a departure from the doctrine of hoke v. Awder. In New York, in 1830, A'c</</(V v. Wads-iv0rth,2. Wend. 120, held that if the grantor was in possession under a claim of title the covenant would run with the land. The furthest point actually decided is in Wia.iv. Larkin, 54 III. 489 (see also Co Vt. 94), hich held that possession in the original covenantor was not necessary, but that if the covenantee gets possession before he assigns, the covenant will run with the land. It would seem that having gone so far a further step would necessarily follow, and that, disregarding the question of possession in either the covenantor or the covenantee, the only possession necessary to make the covenant run should be that of the subsequent assignee who sues. It would seem ihat in Mas- sachusetts the old doctrine would still be followed. > later v. Rawsoii,b Met. 439. For a valuable discussion of this point see Rawle on Covenants for Title, 5th ed., §§ 232- 236. Real Pkoperty — Lease — Condiiions. — The lease contained a covenant not to underlet or assign without lessor's license, and by the terms of the lease the lessor could re-enter for breach of any covenants. The lessor gave a license to the lessee to assign his term to a certain person, but stated in it that no further assignment should be made without his (lessor's) license. The assignee agreed with the assignor to conform to the terms of the lease. The assignee assigns to defendant without the lessor's license and the latter brings an action to recover possession. Held, the assignee was bound by the covenant and condition and lessor can recover. Kew v. Trainor, 37 N. E. Rep. 223 (111.). This decision takes much that is objectionable out of the rule laid down in Dumpor^s Ca<e, 4 Co. 119 b. If the lessor can, by expressly stating in his license that it applies only to the one assignment, avoid the application of the rule, such a course will always be adopted by lessors and the rule will never take effect. Real Property — Party Walls — Additions wholly on Land of one Owner. — Plaintiffs and defendant own adjoining pieces of land. In the deeds to plaintiffs' and defendant's predecessors from the city of Boston, which originally owned both pieces of land, are provisions that " the owner of the premises conveyed may build one-half of the division wall on the adjoining lots, which half, when used by the owners of the adjoining lots for building purposes, is to be paid for by them to the extent so used." Plaintiffs, after acquiring their land, wished to build a higher block, and strengthened the wall on their side, as well as building it up. Defendant made use of the wall in increasing the height of his own block, and now plaintiffs seek to Recover not only for the use of the old party wall as carried up, but also for the addi- tions in thickening and strengthening it. Held, plaintiffs can recover only for the use of the old party wall as carried up. Walker et al, v. Stetson, 38 N. E. 18 (Mass.). See Notes. Real Property — Prescription — Nuisance. — Bill by the Board of Health to abate a nuisance. The defendant carried on the business of fat rendering, which caused noxious odors injurious to the health of the neighbors. The defendant had carried on the business for twenty-eight years, and claimed a right by prescription to continue it. i/t'/i/ (following Com, v. Upton, d Gray, 473): i. Carrying on an offensive trade for twenty years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out, to the occupants of and travellers upon which it is a nuisance, because in such a case there is no adverse use of another's property ; 2. No right to prescription can be obtained against the public. Board of Health of North Brunswick v. Lederer et at,, 29 Atl. Rep. 444 (N. J.). The decision follows the weight of authority in America and England. Real Property — Riparian Rights. — "Reliction." — Held, th&t land formed by the gradual and imperceptible receding of the Missouri River belongs to the riparian owner. Gill v. Lydick el al., 59 N. W. Rep. 104 (Neb.). See Notes. Real Pr'>pekty — Riparian Rights — Alluvion. — Held, that riparian owner must stand the loss caused by the gradual abrasion of the Missouri River, but that he still owned the land separated from the remainder of his tract by a sudden change of the river's course. Bom ier v. Stricklett, 59 N. W. Rep. 550 (Neb.). See Notes. Tenants in Common — Right of Non-occupying Tenant in Common to Recovfr for Use and Occupation. — One tenant in common allowed the other to occupy the whole property with no agreement, and now brings assumpsit for use and